Citation NR: 9701510
Decision Date: 01/16/97 Archive Date: 02/03/97
DOCKET NO. 95-24 978 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Daniel G. Krasnegor, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1967 to July
1969.
The claims file contains a report of a rating decision dated
in October 1984 wherein entitlement to service connection for
post traumatic stress disorder was denied. A computer
generated document dated in October 1984 indicated the
veteran may have been notified of the above denial.
The current appeal arose from a May 1991 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama. The RO determined that new and
material evidence had not been submitted to reopen a claim of
entitlement to service connection for post traumatic stress
disorder.
The RO affirmed the determination previously entered when it
issued rating decisions in May 1992 and January 1993.
In March 1995 the Board of Veterans’ Appeals (Board)
determined that new and material evidence had been submitted
to reopen a claim for entitlement to service connection for
post traumatic stress disorder and remanded the case to the
RO for further development, including a directive that the
veteran be requested to provide a detailed statement as to
all stressors to which he was exposed during service in
Vietnam. As was the case in the previous RO letter to the
veteran requesting the same information, the veteran failed
to respond.
The case has been returned to the Board for final appellate
review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran maintains that while in Vietnam, he saw children
getting burned and his buddies killed. He states that since
Vietnam, his nerves have not been the same, and that he has
had nightmares and flashbacks, thereby warranting entitlement
to a grant of service connection for PTSD.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against a grant of entitlement to service
connection for PTSD.
FINDINGS OF FACT
1. The veteran served as an assistant machine gunner during
a tour of duty in Vietnam.
2. It is not shown nor has it been verified that the veteran
engaged in combat while serving in Vietnam.
3. The veteran did not experience, witness, nor was he
confronted with an event or events that involved actual or
threatened death or serious injury, or a threat to the
physical integrity of self or others.
4. The record does not substantiate the existence of a
stressor necessary to support a diagnosis of post traumatic
stress disorder, nor has such disorder been diagnosed.
5. The veteran does not have post traumatic stress disorder
as a consequence of his service.
CONCLUSION OF LAW
Post traumatic stress disorder was not incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 1110,
1154(b), 5107(a) (West 1991 & Supp. 1996); 38 C.F.R. §
3.304(d)(f) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
Service medical records reflect no complaints of or treatment
for psychiatric problems. At separation in July 1969 the
veteran indicated on a report of medical history that he had
nervous trouble and depression, but no nightmares. The
clinical evaluation of the psychiatric system was normal.
Service administrative records show that the veteran served
in Vietnam for one year. While in Vietnam he was assigned
duties as assistant machine gunner.
An August 1969 VA medical examination for an unrelated
disorder disclosed the appellant was alert, rational,
cooperative and coherent.
The claimant was diagnosed with alcohol addiction and mild
depression, secondary to alcoholism when hospitalized by VA
in June 1981.
The veteran was admitted to a VA hospital in May 1982 with
complaints of feeling nervous and tremulous. He was
diagnosed with alcohol abuse.
In a September 1982 statement, the veteran indicated that he
suffered from “nervousness.”
From September to October 1982 the veteran was an inpatient
at a VA hospital. He was admitted with complaints of
inability to concentrate on anything, feeling down, and
racing thoughts. He was diagnosed with mixed bipolar
disorder.
In a December 1982 statement the veteran related that he
continued to have psychiatric problems, and that his
difficulties had begun while in Vietnam. In a January 1983
statement he reported that the Army had treated him with
Valium and Librium.
The veteran was hospitalized at a VA facility in May 1983
with complaints of problems with his nerves, hearing things
and feeling depressed. He was diagnosed with alcohol abuse
and mixed bipolar disorder.
In July and August 1983 the veteran was hospitalized by VA
with alcohol abuse problems, and was diagnosed with continued
alcohol abuse and adjustment disorder with depressed mood.
Received in October 1990 was a statement from the veteran
that he had been treated for PTSD.
In October 1990, the RO requested that the veteran provide
details regarding the stressors he alleged caused PTSD.
According to the veteran, he witnessed a truck explode when
it hit a mine, killing the individuals in the truck. He
claimed to have been overrun for 14 days while at “LZ youg,”
and “the bunker line was killed almost every day and several
more people died at night”. He noted that he could not
remember all the names of the dead. He also reported seeing
a gun barrel explode killing five or six people. He
indicated that while in Vietnam, he was in the “Anexcal
division in the I corp near Chu Li, attached to the 25
infantry down south near Long Bend,” working as a quad fifty
gunner.
From October 1990 to November 1990 the veteran was
hospitalized at a VA facility. He was admitted because of
increasing nervousness, nightmares and flashbacks about
Vietnam, depression, irritability, poor concentration and
mood swings. He was noted to have been in direct combat in
Vietnam as a machine gunner in Search and Destroy Patrol and
Reconnaissance Missions, during which time, he was reported
to have seen a lot of dead and mutilated buddies. The
veteran was diagnosed with bipolar disorder, depressed with
PTSD, delayed type.
In a November 1990 letter, sent to his Senator, the veteran
said that he had flashbacks and a short temper as well as
trouble concentrating.
VA out-patient treatment records from December 1990 show a
diagnosis of bipolar disorder, depressed, rule out PTSD.
A VA hospital report from January and February 1991 shows the
veteran was treated for chronic alcohol abuse. He said that
he was in combat with the Army in Vietnam, saw friends
getting killed, and felt guilty about killing Vietnamese.
Diagnoses of continuous alcohol abuse, PTSD and schizo-
affective disorder were rendered.
The appellant was examined by a VA physician in February
1991. He reported that while in Vietnam he was on convoy
support, killed a lot of Vietnamese, was on bunker line
support, and burned bodies. At that time, he had complaints
of guilt about killing people and constant thoughts about
seeing his friends being killed. Diagnoses were PTSD with
depression and continued alcohol abuse.
August 1991 VA out-patient treatment records evidence a
diagnosis of bipolar disorder.
The veteran was at a VA hospital from August to October 1991
with complaints of feeling nervous, scared, and unable to
sleep at night. He was diagnosed with bipolar disorder with
depression and episodic alcohol abuse.
The claimant was hospitalized from October to December 1991
by VA with complaints of nightmares about the Vietnam war.
He was diagnosed with PTSD, bipolar disorder, depressive with
suicidal ideation.
From May to June 1992 the appellant was an inpatient at a VA
hospital with complaints of drinking too much. Diagnoses
were alcohol dependence, bipolar disorder and PTSD.
The veteran was treated at a VA hospital from October to
November 1992 for insomnia, feelings of nervousness and
depression, as well as guilt and nightmares about Vietnam.
He indicated that he had dreams about Vietnam in which he was
attacked and soldiers died. He was noted to have expressed
guilt about killing children and females during the war. He
was diagnosed with PTSD with depression.
In an October 1996 statement the veteran's representative
argued that the appellant was engaged in combat in Vietnam,
as his unit was a quad M55 mounted .50 caliber machine gun
battery, stationed permanently at Chu Lai with duties of
providing convoy security, combat assault and perimeter
defense.
In March 1995 and November 1995 the RO requested the veteran
to provide comprehensive details of his alleged stressors so
that an attempt could be made to verify them. He failed to
respond on either occasion.
Analysis
The Board must initially address the question of whether the
claimant has presented evidence of a well grounded claim.
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78
(1990). The evidence, in brief, shows that the appellant
served in Vietnam during the period of hostilities there,
that he reported he was exposed to stressors during such
service, and that post traumatic stress disorder has been
diagnosed by VA psychiatrists. In view of these findings,
the Board has concluded that the veteran’s claim is not
implausible; therefore, the Board must determine if VA has a
further obligation to assist him, more than it already has,
in the development of his claim.
As noted earlier, the veteran failed to respond on two
occasions to RO requests that he provide detailed statements
pertaining to alleged stressors in Vietnam. The appellant
has failed to cooperate in the efforts to assist him in the
development of facts pertinent to his claim. Accordingly,
the Board concludes that there is no further duty to assist
the veteran in the development of his appeal, and that a
determination must be made on the basis of the evidence of
record.
In order to be entitled to service connection for disease or
disability, the evidence must reflect that a chronic disease
or injury was either incurred in or aggravated by military
service. 38 U.S.C.A. § 1110.
Satisfactory lay or other evidence that an injury or disease
was incurred or aggravated in combat will be accepted as
sufficient proof for service connection if the evidence is
consistent with the circumstances, conditions or hardships of
such service even though there is no official record of such
incurrence or aggravation. 38 C.F.R. § 3.304(d) (1996).
Service connection for post-traumatic stress disorder
requires medical evidence establishing a clear diagnosis of
the condition, credible supporting evidence that the claimed
in service stressor actually occurred, and a link,
established by medical evidence, between current
symptomatology, and the claimed in service stressor. If the
claimed stressor is related to combat, service department
evidence that the veteran engaged in combat or that the
veteran was awarded the Purple Heart, Combat Infantryman
Badge, or similar combat citation will be accepted, in the
absence of evidence to the contrary, as conclusive evidence
of the claimed in service stressor. 38 C.F.R. § 3.304(f).
When, after consideration of all the evidence, a reasonable
doubt arises regarding service origin, such doubt will be
resolved in favor of the veteran.
38 C.F.R. § 3.102.
In the case of Zarycki v. Brown, 6 Vet.App. 91 (1993), the
United States Court of Veterans Appeals (Court) set forth the
framework for establishing the presence of a recognizable
stressor, which is the essential prerequisite to support the
diagnosis of post-traumatic stress disorder. The Court
analysis divides into two major components: The first
component involves the evidence required to demonstrate the
existence of an alleged stressful event; the second involves
a determination as to whether the stressful event is of the
quality required to support the diagnosis of post-traumatic
stress disorder.
With regard to the first component of the Court analysis,
under 38 U.S.C.A. § 1154(b), 38 C.F.R. § 3.304, and the
applicable VA Manual M-21-1 provisions, the evidence
necessary to establish the occurrence of a recognizable
stressor during service to support a claim of entitlement to
service connection for PTSD will vary depending on whether or
not the veteran "engaged in combat with the enemy." See Hayes
v. Brown, 5 Vet.App. 60 (1993). Whether or not a veteran
"engaged in combat with the enemy" must be determined through
recognized military citations or other service department
evidence. In other words, the claimant's assertions that he
"engaged in combat with the enemy" are not sufficient, by
themselves, to establish this fact.
The record must first contain recognized military citations
or other supportive evidence to establish that he "engaged in
combat with the enemy." If the determination with respect to
this step is affirmative, then (and only then), a second step
requires that the veteran's lay testimony regarding claimed
stressors must be accepted as conclusive as to their actual
occurrence and no further development or corroborative
evidence will be required, provided that the veteran's
testimony is found to be "satisfactory," e.g., credible, and
"consistent with the circumstances, conditions, or hardships
of such service." Zarycki at 98.
In this regard, the veteran's DD Form 214 (Report of Transfer
or Discharge), contains no reference to any combat citations.
The administrative records now on file do not show that the
veteran was entitled to receive the Purple Heart Medal, the
Combat Action Ribbon, or other awards or decorations
appropriate to his branch of service denoting participation
in combat with the enemy.
Further, the Board notes that the Court has indicated that
the mere presence in a combat situation or reporting indirect
experiences of an individual is not sufficient to show that
he was engaged in combat with the enemy. See Wood v.
Derwinski, 1 Vet.App. 190 (1991) (aff'd on reconsideration, 1
Vet. App. 406 (1991)).
The Board has also considered the fact that the veteran’s
duties in Vietnam were as a machine gunner as well as his
representative's statements that the veteran's unit should be
presumed to have been in life-threatening situations based on
the fact that it was engaged in convoy security and perimeter
defense. Even if the veteran's unit was in combat, or in
life-threatening situations, it does not establish that the
veteran himself was in such situations. As such, the Board
finds that there is no evidence of record showing that the
veteran was engaged in combat with the enemy.
Where, as here, VA determines that the veteran did not engage
in combat with the enemy, his lay testimony, by itself, will
not be enough to establish the occurrence of the alleged
stressor. Instead, the record must contain service records
which corroborate the veteran's testimony as to the
occurrence of the claimed stressor. See Zarycki at 98.
In this regard, the record does not corroborate the veteran's
accounts of his alleged stressful events. In his October
1990 statement, he related stressors seeing his buddies
killed and others killed while in a truck that hit a mine.
During hospitalization in October 1990 through November 1990
he stated that he was on “search and destroy” and
“reconnaissance” missions and engaged in direct combat. The
appellant has also related guilt about killing Vietnamese
civilians on a number of occasions, however, the service
records do not confirm any of the alleged events.
Service connection may not be established for PTSD on the
basis of a diagnosis unsupported by credible evidence of an
in service stressor meeting the diagnostic criteria. See
West v. Brown, 7 Vet.App. 70, 78-9 (1994) (A diagnosis of
PTSD based on an unverified stressor is inadequate for rating
purposes).
While the record shows that PTSD has been diagnosed by VA
psychiatrists, the question of whether a specific event
claimed by the veteran actually occurred is a question of
fact for the Board to decide, involving as it does factors
that are as much historical as psychological. In this
regard, the Court has observed that just because a physician
or other health care professional accepted the appellant’s
description of his Vietnam service experiences as credible
and diagnosed PTSD does not mean that the Board was required
to grant service connection for PTSD. See Wilson v.
Derwinski, 2 Vet.App. 614, 618 (1992).
In the veteran’s case, VA health professionals have accepted
his account of his Vietnam experiences in outpatient,
inpatient, and examination settings. Significantly, however,
the appellant’s accounts of his alleged combat experiences
are couched in vague and general descriptions which preclude
any meaningful research by the Director of the United States
Army and Joint Services Environmental Support Group (ESG).
Accordingly, each examination wherein PTSD was diagnosed is
inadequate for rating purposes. See West, 7 Vet.App. at 78;
see also Wood v. Derwinski, 1 Vet.App. 90 (1991).
The veteran has failed to be more specific in providing
stressor information, and has failed to respond to the most
recent two inquiries by the RO in this regard. However, the
Court has held that asking the veteran to provide the
underlying facts, i.e., the names of individuals involved,
the dates, and the places where the claimed events occurred,
does not constitute an impossible or onerous task. See Wood,
1 Vet.App. at 193. Therefore, the Board finds that the
appellant does not have a “clear diagnosis” of PTSD required
under 38 C.F.R. § 3.304(f) to grant service connection, and
that his claim must be denied.
In reaching this decision the Board considered the criteria
under 38 U.S.C.A. § 1154, and would emphasize at this
juncture that it is cognizant of the circumstances,
conditions, and hardships attendant to service in Vietnam.
The Board, however, would also emphasize that service in
Vietnam during the period of hostilities does not create a
presumption that the appellant was exposed to traumatic
events such as to result in a diagnosis of PTSD. See Wood, 1
Vet.App. at 193 (Service in a combat zone is not service in
combat).
The evidentiary record in this case clearly shows that a
diagnosis of PTSD has not been substantiated, and there is no
evidence that the veteran served in combat.
The Board has also considered the doctrine of reasonable
doubt, however, as the veteran has been found, after
considering the probative value of all the evidence, not to
have a clear diagnosis of PTSD for which service connection
is claimed, the preponderance of the evidence is manifestly
against establishing entitlement, and the doctrine is not for
application. 38 U.S.C.A. § 5107.
It is the judgment of the Board that the record does not
support a grant of entitlement to service connection for
PTSD. 38 U.S.C.A. §§ 1110, 1154, 5107; 38 C.F.R.
§ 3.304(f).
ORDER
Entitlement to service connection for post-traumatic stress
disorder is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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